Western Michigan University Cooley Law School Blog

Insights & Analysis on Presidential Emergency Power by Ret. Brig. Gen. Michael C.H. McDaniel

Western Michigan University-Cooley Law School Associate Dean and Ret. Brigadier General Michael C.H. McDaniel offered insight into the legal ramifications if President Donald Trump invokes the National Emergency Act in order to build a wall along the U.S.-Mexico border.

McDaniel, who has served as deputy assistant secretary for Homeland Defense Strategy, Prevention and Mission Assurance and assistant adjutant general for Homeland Security, Michigan National Guard, told Law360 that decisions associated with the national emergency declaration could be brought to court. This could include any disaster relief funds from FEMA or funds from the U.S. Department of Defense that might be used to build a wall.

“You are in essence taking needed military funding from military construction or some sort of cleanup,” McDaniel told Law360, noting these funds would be “a little bit suspect at best and would be a political disaster at worst.”

McDaniel also spoke with additional national media outlets, including the Mike Siegel Show, and The Guy Gordon Show, as a subject matter expert on presidential emergency powers, and how declaring a national emergency gives the president access to a variety of funds.

In an interview with WWMT-Channel 3 in Kalamazoo, Michigan, McDaniel argued a national emergency is typically declared for very specific situations. He said President Trump's reasoning does not fit that criteria and believes this move would be challenged by federal courts and immigration groups.

"You're creating a new precedent when you do this. There has not been use of a national emergency declaration and then funds domestically, except for short periods of time," McDaniel said in the WWMT interview.

The retired brigadier general and WMU-Cooley professor of Constitutional Law spoke in depth with Breitbart Today about the process the president and Congress must go through in an emergency declaration.

“It’s not whether or not the president can declare an emergency. He can. Because there’s no clear definition, I think that the courts will interpret that and favor the implicit powers of the president either under the Executive Clause or the Commander-in-Chief Clause to do so, but the question is, what then?” McDaniel said on Breitbart Today. “If he declares an emergency, does that mean then that he is willing to sign some form of continuing resolution on the budget and then we have an ongoing legal snarl, this conflict in all sorts of different courts, again, like we saw with the travel ban? So the question is, is there a true benefit to the president? I’m not sure that there is. It’s almost like it’s easier to try and work out some sort of agreement with Congress than to do this.”

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MORE NEWS COVERAGE

SiriusXM Patriot Channel, Breitbart Today
online article and radio interview

WWMT TV (Kalamazoo)

WJR Radio (Guy Gordon Show)

Mike Siegel Show

Law 360 

February 16